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Seitz v. Seitz

Court of Appeals of Ohio, Fifth District

January 5, 2007

SAMUEL A. SEITZ, Plaintiff-Appellant
v.
TOBBI L. SEITZ, Defendant-Appellee

Appeal from the Morrow County Court of Common Pleas, Domestic Relations Division, Case No. 24693

For Plaintiff-Appellant: TIMOTHY D. GERRITY and SUSAN S. R. PETRO

For Defendant-Appellee: ANDREA R. YAGODA

JUDGES: Hon. William B. Hoffman, P.J. Hon. Julie A. Edwards, J. Hon. John F. Boggins, J.

OPINION

Hoffman, P.J.

{¶1} Plaintiff-appellant Samuel A. Seitz appeals the December 12, 2005 Judgment Entry of the Morrow County Court of Common Pleas, designating defendant-appellee Tobbi L. Seitz residential parent of the parties' minor children.

STATEMENT OF THE FACTS AND CASE

{¶2} The parties were married on April 30, 1992, and two children were born of the marriage: Sidney, born September 4, 1995, and Simone, born September 21, 1992. At the time the parties were married, appellee was a linguist in the United States Navy, stationed in Spain. Due to appellee's military responsibilities, appellant was the children's primary care giver for several years. The parties lived in Spain until 1998, when appellant moved to his parents' home in Cardington, Ohio with the children. Appellant did not advise appellee of his decision to move, and appellee had another year of service to fulfill. At the time, appellee was at sea on a tour of duty, and applied for emergency leave or discharge, which was denied. Eventually, appellant was reassigned to Fort Meade, Maryland.

{¶3} On October 11, 1999, appellant filed a complaint for divorce. On November 17, 1999, the trial court issued temporary orders designating appellant the children's temporary residential parent and granting appellee companionship pursuant to the Local Rule 2 long distance schedule.

{¶4} On March 23, 2002, the case was tried to the magistrate for a determination of custody. The magistrate did not render a decision until twenty-four months later on March 22, 2004. Appellee filed objections to the Magistrate's Decision.

{¶5} On August 15, 2004, the trial court conducted a hearing in this matter, considering additional facts and circumstances. Via Judgment Entry of August 25, 2004, the trial court ordered a hearing as to the allocation of parental rights and responsibilities and reappointed the guardian ad litem. The Entry also required the guardian ad litem arrange a home study and observe the children's interactions with both parents.

{¶6} Via Judgment Entry of December 12, 2005, the trial court adopted the March 22, 2004 Magistrate's Decision as an order of the court as to all matters, exclusive of the allocation of parental rights and responsibilities, and designated appellee the sole residential parent and legal custodian of the parties' children.

{¶7} It is from the December 12, 2005 Judgment Entry appellant now appeals, assigning as error:

{¶8} "I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DELAYING ACTION FOR FORTY (40) MONTHS AFTER THE CLOSE OF EVIDENCE BEFORE THE MAGISTRATE.

{¶9} "II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS INTERACTIONS WITH THE GUARDIAN AD LITEM.

{¶10} "III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN BASING ITS ALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES, IN ANY PART, ON A CONSIDERATION OF THE PARENTS' RELATIVE FINANCES. R.C. 3109.04(F)(3).

{¶11} "IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS DETERMINATION OF AND ORDER FOR VISITATION.

{¶12} "V. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DETERMINING, CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE, THAT APPELLANT HAD ENGAGED IN PARENTAL ALIENATION."

{¶13} Appellant asserts the trial court abused its discretion in allocating the parental rights and responsibilities in this matter. An abuse of discretion connotes more than an error of law or judgment; it implies the court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. In applying the abuse of discretion standard or review, we may not merely substitute our judgment for that of the trial court. Berk v. Matthews (1990), 53 Ohio St.3d 161.

I

{¶14} In the first assignment of error, appellant cites the trial court's delay in rendering a decision in this matter. Specifically, appellant asserts the trial court abused its discretion in considering evidence presented after the March 23, 2002 hearing before the magistrate. Appellant maintains had the magistrate acted expeditiously or even reasonably after the close of his hearing, the evidence upon which the trial court relied in upholding appellee's objection and reversing the determination of custody would not have been in the record.

{¶15} While we agree the delay in this matter was arguably excessive and unreasonable, appellant has not referenced his objection to the trial court proceedings in the record. Appellant failed to object to the trial court's hearing additional evidence after the delay in rendering a decision after the March 23, 2004 hearings. As a general rule, a party's failure to raise an issue at the trial court level waives the issue on appeal. State v. Williams (1977), 51 Ohio St.2d 112. Accordingly, we find appellant's first assignment of error waived, and overrule the same.

II

{¶16} In the second assignment of error, appellant asserts the trial court abused its discretion in failing to comply with either the statutory or procedural authorization for appointment of the guardian ad litem. Again, appellant does not reference where in the record he objected to the trial court's appointment or ...


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